Jean Camille Chamblin v. INS CV-98-97-JD 02/28/00 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jean Camille Chamblin, a/k/a John Chamblin
v. Civil No. 98-97-JD Opinion No. 2000DNH047 Immigration and Naturalization Service
REPORT AND RECOMMENDATION
Before me for a Report and Recommendation is the motion for
attorney's fees in excess of the statutory limit set forth in the
Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(d)(2), filed by
petitioner's appointed counsel. Counsel requests payment of
$10,682.93 (consisting of $9,364.50 in fees plus $1,318.43 in
costs) for representing petitioner, an Immigration and
Naturalization Service ("INS") detainee, in his successful habeas
corpus petition under 28 U.S.C. § 2241. The INS contends that
the CJA does not authorize the appointment of counsel for an INS
detainee, and that the amount requested is excessive.
For the reasons set forth below, I recommend granting the
motion and awarding fees and costs under the CJA in the total
amount requested.
Background
Petitioner, Jean Camille Chamblin, was an INS detainee who has since been released. While detained, Chamblin applied for an
administrative waiver of deportability under former section
212(c) of the Immigration and Naturalization Act, 8 U.S.C.
§ 1182(c) (1988). An Immigration Judge denied the application,
and the Board of Immigration Appeals ("BIA") affirmed.
Thereafter, Chamblin filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, seeking a remand of his
212(c) application to the BIA, citing Goncalves v. Reno, 144 F.3d
110 (1st Cir. 1998), cert, denied, 119 S. C t . 1140 (1999).
Chamblin also reguested release from federal detention pending
the outcome of the remand.
In a motion filed on September 1, 1998, Chamblin moved for
the appointment of counsel (document no. 11) to assist him in
litigating his petition. On September 28, 1998, I granted the
motion and expressly cited the CJA as authority for the
appointment. See Order (document no. 23).
Chamblin's habeas corpus petition was ultimately successful.
Following extensive briefing over the course of a year,
intervening action by the Supreme Court on a petition for
certiorari in Goncalves and on related matters, and my issuance
of a Report and Recommendation (document no. 38) recommending
2 that the petition be granted, Chamblin's fortune changed. The
BIA reconsidered the 2 1 2 (c) waiver petition and remanded the
matter to an Immigration Judge, and the INS modified its
interpretation of 8 U.S.C. § 1226, which it had previously argued
precluded the possibility of release pending deportation in
Chamblin's case. Chamblin received a bail hearing before an
Immigration Judge and was released from INS custody. These
events mooted the petition. The district court dismissed the
petition upon the Government's motion.
Discussion
A. CJA Appointment
_____ The Government, at this late stage in the case, contends
that the CJA did not authorize the appointment of counsel for
Chamblin, since he was an INS detainee, and not a prisoner or a
criminal defendant. See Respondent's Opposition to Appointment
of Counsel at 2 (document no. 49).
It is troubling that the Government has filed its opposition
to the CJA appointment so late in the case without any
explanation for the timing. Petitioner's counsel has incurred
substantial fees and costs since my September 1998 order of
appointment. Since the burden of proof necessary to estop the
3 Government is high and unmet here, I will address the
Government's arguments on the merits.
The plain language of the CJA does not support the
Government's position. The CJA expressly authorizes the
appointment of counsel for indigent persons petitioning for writ
of habeas corpus under 28 U.S.C. § 2241. It does not contain the
caveat that the Government argues is implicit, limiting its
application to "persons in the criminal justice system or persons
who are prisoners, serving sentences because of criminal
convictions," Respondent's Opposition to Appointment of Counsel
(document no. 49) at 2. The statute provides as follows, in
pertinent part:
Whenever the United States magistrate or the court determines that the interests of justice so reguire, representation may be provided for any financially eligible person who -
(A) . . .
(B) is seeking relief under section 2241, 2254, or 2255 of title 28.
18 U.S.C. § 3006A(a)(2)(B) (Supp. 1999). Chamblin demonstrated
his financial eligibility and filed his petition pursuant to
section 2241, and I previously found that the interests of
justice reguired an appointment in this case.
4 Relying on Perez-Perez v. Hanberrv, 781 F.2d 1477 (11th Cir.
1986), and citing a First Circuit decision that provides no
meaningful guidance on the issue,1 the Government's rejoinder is
that the CJA, 18 U.S.C. § 3006A(a)(2)(B), does not cover every
indigent petitioner seeking relief under section 2241. When
construed in light of its title, context, and legislative
history, according to the Government, the CJA provision covers
only petitioners challenging their criminal convictions or
sentences, not habeas petitioners such as Chamblin who are
challenging administrative detention decisions.
The Government has rehearsed these arguments before. It
lost in the most recent case to appear in the reporters, see
Saldina v. Thornburgh, 775 F. Supp. 507 (D. Conn. 1991). Among
other things, the Saldina court concluded that the statutory
language means what it says and that it covers INS detainees
petitioning for habeas corpus:
The clear construction of this statute is that any indigent person seeking habeas corpus relief under the provisions of Title 28 is entitled to CJA representation when the interest of justice so reguires. This statute is not ambiguous, vague, or confusing. . . . Section 2241 provides relief for
1Romero Barcelo v. Brown, 655 F.2d 458, 461 n.4 (1st Cir. 1981) ("The Criminal Justice Act has no application to civil cases other than habeas petitions." (emphasis added))
5 prisoners in custody of the authority of the United States "in violation of the Constitution or laws or treaties of the United States." This remedy has never been viewed as available only to challenge criminal convictions. The canon of statutory construction is that Congress is presumed to understand the judicial background against which it legislates.
Saldina, 775 F. Supp. at 508 (citations omitted); see also
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)
(Congress is presumed to mean what it says when statutory
language is unambiguous); see generally Goncalves, 144 F.3d at
120 ("Aliens in custody of federal immigration officials have
traditionally been able to obtain review of immigration decisions
by petitioning for a writ of habeas corpus under what is now §
2241."). I find Saldina persuasive.
In a portion of its brief littered with emphatic
underlining, the Government argues that the statutory language
does not authorize CJA appointments for all habeas petitioners,
despite the plain language. Notably, according to the
Government, it is part of the Criminal Justice Act, codified in
Title 18 ("Crimes and Criminal Procedure"), and contained within
section 3006A, entitled "Adeguate representation of defendants."
These factors are inconseguential.
"'[T]he title of a statute . . . cannot limit the plain
6 meaning of the text. For interpretive purposes, [it is] of use
only when [it] shed[s] light on some ambiguous word or phrase.'"
Pennsylvania Dep't of Corrections v. Yeskev, 524 U.S. 206, 212
(1998) (brackets and ellipsis in original) (guoting Trainmen v.
Baltimore & Ohio R. Co., 331 U.S. 519, 528-529 (1947)). The
Government highlights no ambiguity in the phrase at issue:
"representation may be provided for any financially eligible
person who . . . is seeking relief under section 2241, 2254, or
2255 of title 28." Congress could have included restrictive
language in section 3006A to ensure that it would cover only
those petitioners challenging their convictions or sentences, but
it did not. The inclusion of the reference to section 2241 in
the statute conveys an intent to authorize CJA appointments for
habeas petitioners who, like INS petitioners, may not base their
claims on sections 2254 and 2255.
The Government's effort to create ambiguity from the context
loses force upon further inspection. The title of the provision,
"Adeguate representation of defendants," does not define its
scope. Section 3006A indisputably authorizes the appointment of
counsel for, among other things, such non-defendants as habeas
petitioners and persons in custody as material witnesses. See 18
7 U.S.C. § 30 0 6A(a)(1)(G); 3006A(a)(2)(B); see also H. Rep. No.
417, 99th Cong., 1st Sess. 13 (1985), reprinted in 1986
U.S.C.C.A.N. 6165, 6175 ("the word 'person' has been substituted
for the word 'defendant' in this subsection [ § 3006A(b)], and
elsewhere in the CJA, to reflect the fact that counsel may be
appointed for habeas petitioners and material witnesses as well
as for persons charged with a crime.").
The Government contends that the legislative history
reflects an intent to restrict CJA appointments to habeas
petitioners challenging their criminal convictions and sentences.
I disagree.
In the first place, courts must look primarily to statutory language, not to legislative history, in determining the meaning and scope of a statute. When a statute's text is encompassing, clear on its face, and productive of a plausible result, it is unnecessary to search for a different, contradictory meaning in the legislative record. . . .
In the second place, legislative history that is in itself inconclusive will rarely, if ever, overcome the words of a statute. . . . [A]n inguiring court, at most, should resort to legislative history only to determine "whether there is a 'clearly expressed legislative intention' contrary to [the statutory] language, which would reguire [the court] to guestion the strong presumption that Congress expresses its intent through the language it chooses."
Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 697-98
8 (1st Cir. 1994) (citations omitted).
Even if it were appropriate to mine the legislative history
where the statutory language itself is unambiguous, nowhere in
the relevant cited legislative history is there a clearly
expressed intention contradictory to the plain language.
References to criminal defendants or criminal proceedings are
inconclusive and may simply reflect that prisoner petitions under
sections 2254 and 2255 comprise the vast majority of habeas
corpus petitions filed in federal court. See, e.g., S. Rep. No.
790, 91st Cong., 2d Sess. 1 (1970) (provision reworded to extend
coverage to "additional facets of the criminal trial process and
related proceedings").2
The Government specifically cites a portion of a House
report stating that habeas proceedings "have traditionally been
regarded as technically civil in nature rather than criminal," so
that "no right to appointed counsel has as yet been recognized
under the sixth amendment," and that the proceedings covered by
2Chamblin's case shows that a habeas corpus petition challenging administrative detention may also relate to a criminal trial: the administrative orders of detention and deportation were conseguences of Chamblin's criminal convictions, cf . United States v. Gonzalez, 2000 WL 39120, *5-*7 (1st Cir. Jan. 24, 2000) (deportation is collateral conseguence of guilty plea). the CJA "are intimately related to the criminal process." H.R.
Rep. No. 1546, 91st Cong., 2d Sess., reprinted in 1970
U.S.C.C.A.N. 3982, 3988. This passage does not evince a
legislative intent contrary to the plain language of the statute
when it is construed in context.
The passage appears with citations to two cases that did not
involve petitions for habeas corpus arising from criminal
convictions. See In re Gault, 387 U.S. 1 (1967) (habeas
challenge to juvenile detention) & Johnson v. Avery, 393 U.S. 483
(1969) (habeas corpus proceeding in which Court ruled that denial
of access to jailhouse lawyer constituted impairment of writ).
The cases are cited as matters involving the "deprivation of
personal liberty," in which "the distinction between civil and
criminal . . . has become increasingly obscure." The citation to
these cases and the reference to a deprivation of personal
liberty in this passage may indicate a legislative intent to
provide authority to appoint counsel in all cases which involve a
deprivation of personal liberty. See Saldina, 775 F. Supp. at
509. In any event, the cited portion of the House report does
not clearly express a legislative intent contrary to the plain
language of the statute. See id.
10 The Government points out that an earlier form of section
3006A originally contained language, deleted in 1986, that
characterized the habeas petitioners eligible for CJA
appointments as persons "seeking collateral relief."
Specifically, section 3006A(a) formerly reguired district courts
to operate a plan to appoint counsel for persons "seeking
collateral relief, as provided in subsection (g)." Subsection
(g) formerly authorized appointments for indigent persons
"seeking relief under 2241, 2254, and 2255 of Title 28." The
Government, citing Perez-Perez, contends that (1) the inclusion
of the gualifying term "collateral relief" in the statute limited
the authority to make a CJA appointment for an INS detainee; and
(2) Congress's deletion of this language in a clarifying
amendment did not expand the authority under section 3006A.
There are several problems with the Government's argument
and its reliance on Perez-Perez. The term "person . . . seeking
collateral relief" does not plainly exclude INS detainees from
the fold of petitioners who may be appointed counsel under the
CJA. An INS detainee's petition may be functionally eguivalent
to a direct appeal, see Goncalves, but it remains properly
classified as a collateral challenge to the extent that there is
11 no right to appeal INS decisions directly to the district court,
see, e.g., Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146 (10th
Cir. 1999) (distinguishing between direct judicial review and
collateral relief available through habeas corpus petition of
aliens in deportation proceedings), petition for cert, filed. No.
99-7964 (Jan. 31, 2000) .
In any event, the term "collateral relief" is no longer part
of the relevant statute. Congress restructured the provision in
1986, deleted the term, and did not insert any gualification on
the scope of section 3006A(a)(2)(B). As noted by Saldina, the
reliance of the Perez-Perez decision on a term that is no longer
included in the statute "logically restricts application" of the
case. Saldina, 775 F. Supp. at 509.
As noted by Saldina, Congress's characterization of the 1986
amendment as "for purposes of clarity only" does not add any
weight to the Government's argument:
Possibly Congress felt it necessary to clarify any conflicting interpretations of the phrase "collateral relief." By removing the phrase without substituting language restricting the appointment of counsel in habeas proceedings, one might infer that the [Perez-1 Perez interpretation was not the victorious version. Alternatively it is possible that the amendment was purely technical in nature, in which case. Congress, in direct contrast to the [Perez-1Perez court's analysis, obviously placed little or no significance on the
12 phrase "collateral relief."
Saldina, 775 F. Supp. at 510.
As to the remainder of the Government's arguments, I fully
concur with Saldina. In countering the Government's contention
that appointing counsel under the CJA to INS detainees who are
petitioning for habeas corpus undermines Congress's intent not to
have the Government pay for counsel in INS administrative
hearings, Saldina effectively uses an analogy to the Social
Security review scheme.
Accordingly, I conclude that 18 U.S.C. § 3006A(a)(2)(B)
means what it says and thus authorizes the appointment of counsel
to represent INS detainees petitioning for writ of habeas corpus
under 28 U.S.C. § 2241.
B. CJA Statutory Cap
The CJA caps attorney's fees for habeas corpus
representation at $750.00. See 18 U.S.C. § 3006A(d)(2). The
court may award fees in excess of the cap when the representation
is extended or complex, if the court certifies that the amount of
the excess payment is necessary to provide fair compensation:
Payment in excess of any maximum amount provided . . . may be made for extended or complex representation whenever the court in which the representation was rendered . . . certifies that the amount of the excess
13 payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.
18 U.S.C. § 30 0 6A(d)(3).
Extended representation connotes a "substantial investment
of time," while " ' [c]omplex' representation refers to the
intricacies of the case and their corresponding call on counsel's
intellectual resources." United States v. Bailey, 581 F.2d 984,
987 (D.C. Cir. 1978). Only reasonably competent and productive
time is deserving of recompense under the CJA. See id. at 988;
accord United States v. Carnevale, 624 F. Supp. 381, 384 (D.R.I.
1985) .
This case reguired extended and complex representation under
these definitions. The matter involved a petition for writ of
habeas corpus brought by a legal resident alien seeking a hearing
on relief from deportation and release from custody pending the
outcome of the deportation process. There were a number of
factual and procedural complexities arising from the fact that
petitioner's case had been pending in the Immigration Court for
more than eight years, as well as resulting from petitioner's
voluminous pro se filings in this court and in the First Circuit
Court of Appeals. In addition, adeguate representation in the
14 habeas corpus case required counsel to pursue an administrative
petition for release from custody. The complex procedural and
factual issues are set forth more fully in counsel's memorandum
in support of his motion for excess fees.
Furthermore, the case involved complex legal issues, arising
from Congress's recent amendments to the immigration laws.
Parsing through the applicable provisions was no easy task. The
issues related to matters pending before the United States
Supreme Court at the time that they were briefed in this court,
see, e.g., Goncalves v. INS, 144 F.3d 110 (1st Cir. 1998), cert.
denied, 119 S. C t . 1141 (1999), as well as a controversial
statutory provision on which scant case law existed at the time:
the constitutionality of the mandatory detention law for certain
classes of deportable aliens. Among other things, I note that
the INS itself had difficulty construing the relevant statutory
and regulatory provisions, since revised its interpretation of a
relevant statute, 8 U.S.C. § 1226, to permit Chamblin to be
released after I issued a Report and Recommendation in Chamblin's
favor.
Throughout the course of his representation of petitioner,
counsel did a fine job of handling a factually and procedurally
15 complex matter and elucidating intricate, evolving issues in
immigration law. The time expended by his office (more than 200
hours over ten months) was spent productively and effectively.
The Government cites to no specific cost entry or fee entry that
is otherwise objectionable.
____________________________ Conclusion
For the foregoing reasons, the motion for attorney's fees in
excess of the statutory limit (document no. 47) should be
granted, and the excess payment should be certified for payment
to the chief judge of the circuit, as necessary to fairly
compensate counsel for extended and complex representation.
Any objections to this Report and Recommendation must be
filed within ten days of receipt of this notice. Failure to file
an objection within the specified time waives the right to appeal
the district court's order. See Unauthorized Practice of Law
Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) .
James R. Muirhead United States Magistrate Judge
Date: February 28, 2000
16 cc: Steven M. Gordon, Esq. Peter E. Papps, Esq. Thankful T. Vanderstar, Esq.